Tuesday, August 23, 2011

Attorneys for inmate accused of killing corrections officer want to see prosecutors' case

Attorneys for an inmate accused of killing a corrections officer five years ago want prosecutors to reveal their evidence to determine whether it satisfies the state's death penalty statute.

The hearing, requested by lawyers for Lee Edward Stephens, is now allowed under a rule enacted by the state's highest court in June. In addition to giving opposing attorneys a peek into the other side's case, the hearings would allow judges to weed out death penalty prosecutions that don't satisfy the new law, one expert said.

Stephens' attorneys are hoping that as a result of the hearing, a judge will take the death penalty off the table for their client.

"If we are right, and I believe we are, Mr. Stephens will not have a death penalty trial," said Gary E. Proctor, one of Stephens' attorneys.

Stephens and another inmate, Lamarr C. Harris, are accused of the fatal stabbing in 2006 of corrections officer David McGuinn, 42, in the now-closed Maryland House of Correction, where Stephens and Harris were serving life sentences.

Five years after the killing, the co-defendants have not been tried, in part because of changes to the state's death penalty law.

The changes, which restrict the cases in which prosecutors can seek capital punishment, reserve the death penalty for first-degree murder in which there is DNA or other biological evidence that links the defendant to the murder, a videotaped confession or a video recording of the crime.

Prosecutors have said in earlier court filings that they will use DNA to tie Stephens to the crime.

Anne Arundel County prosecutors declined to comment on the challenge to their evidence.

"We are still reviewing those motions and will be preparing for those motions," said Kristin Fleckenstein, a spokeswoman for the state's attorney's office.

Stephens' attorneys asked for such a hearing two years ago, but were turned down by Judge Paul A. Hackner. But the Court of Appeals enacted a rule in June – two months after Stephens' appeal was dismissed – to allow defense lawyers to challenge whether prosecutors' evidence measures up to the requirements of the death penalty law. One judge called the hearings "a preview of coming attractions" in capital cases.

The new rule was designed to make it clear that judges have the authority to decide whether there appears to be evidence for a death penalty case if defense lawyers challenge that assertion.

While the rule was being crafted, a similar proceeding was held for Thomas Leggs Jr., who was accused of sexually assaulting and murdering a child on the Eastern Shore. A judge allowed his death penalty case to continue after prosecutors explained the evidence they intended to use at a trial. However, in Leggs' case, no trial was held. In exchange for prosecutors' agreeing to not seek the death penalty, Leggs pleaded guilty in March and was sentenced to life without parole.

In Stephens' case, getting the death penalty tossed out would be a major defense win, said lawyer Andrew Levy, who teaches at the University of Maryland law school. But the hearing could help Stephens' lawyers if they lose, too: "Any time you get an opportunity to force the prosecution to show you some of their hand, it's a no-brainer, you take it."

Stephens' trial, predicted to last seven weeks, is scheduled to begin in January.

In 2006, investigators wrote in charging documents that Harris was seen stabbing McGuinn and that a bloody T-shirt was found under Stephens' bed.

But Stephens' lawyers have countered that McGuinn's blood on their client's clothing and other items in his cell does not prove that he had a role in the slaying because blood was "everywhere."

"His link to the crime scene, also his home, is not, however, a link to the act of murder," they wrote to the judge in their request for the hearing.

They have long claimed that the tier was so blood-covered that at least one inmate slipped and fell in it and that others had blood on their cells or curtains.

Stephens' lawyers also claim that the death penalty unnecessarily allows execution in violation of the state Constitution. That argument did not gain traction in the Leggs case.

Hackner, the judge, is scheduled to hear Stephens' pretrial motions in September but it's not clear if he will weigh the death penalty evidence at that time.

Investors did not take the news well. Goldman (GS, Fortune 500) shares plunged in the final minutes of trading, following a report published late Monday by Reuters. Shares dropped almost 5% to $106.51 -- a fresh 52-week low. The stock lost another 1.5% in trading after the close.

Weingarten, an attorney at Steptoe & Johnson, is one of the nation's premier white-collar crime attorneys. He represented WorldCom CEO Bernard Ebbers and former Enron accountant Richard Cause, among others.

In a statement to CNNMoney, Goldman spokesman David Wells confirmed that Blankfein has retained counsel.

"As is common in such situations, Mr. Blankfein and other individuals who were expected to be interviewed in connection with the Justice Department's inquiry into certain matters raised in the [Senate Permanent Subcommittee on Investigations] report hired counsel at the outset," Wells said.

In April, the Senate Permanent Subcommittee on Investigations released a report that was very critical of Goldman's activities in the housing market, saying the firm had misled both clients and Congress.

The subcommittee singled out Goldman and Deutsche Bank (DB) as examples of Wall Street firms that reaped huge profits by marketing securities backed by subprime mortgages as safe investments to clients, even as the banks bet against these very same securities.

Last year, Goldman paid the Securities and Exchange Commission $550 million to settle charges of defrauding investors in a sale of securities tied to subprime mortgages.

The SEC alleged that New York-based Goldman and one of its vice presidents, Fabrice Tourre, failed to disclose conflicts in a 2007 sale of a so-called collateralized debt obligation dubbed Abacus.

A message left for Weingarten at his Washington, D.C., office was not immediately returned.

Sunday, August 21, 2011

Prosecutors alleged Thursday in court documents that Albert Haynesworth's attorneys offered money to the alleged victim in the sex-abuse case against him in hopes of getting her to persuade the government to drop the charges.

"The government is well aware of the fact that on numerous occasions since the assault . . . defense counsel has approached the victim's attorney offering a sum of money in exchange for getting the criminal case dismissed," government lawyers said in a filing in D.C. Superior Court.

They did not say how much had allegedly been offered. But the filing, by assistant U.S. attorneys Heide L. Herrmann and Sharon Donovan, means that both sides of the case have now claimed that the other has attempted to use money to influence the outcome of a trial that is scheduled to begin Tuesday.

In a Monday filing, Bolden asked the judge overseeing the trial to force prosecutors to provide evidence, including the testimony of a security guard who allegedly told a grand jury that he saw the former Washington Redskin grope a cocktail waitress at the W Hotel's P.O.V. Roof Terrace Lounge early Feb. 13 after a party.

The guard later told one of Bolden's private detectives that the contact was "consensual" and that he was offered $50,000 to testify on behalf of the waitress from a man who introduced himself as the woman's attorney, Bolden said. On Thursday, the government said that the security guard was only interviewed and that while someone might have offered him money, he only "assumed" that the person represented the waitress. Prosecutors called Bolden's allegations "unconscionable."

Haynesworth was charged with misdemeanor sexual abuse after prosecutors said he "inappropriately" touched the woman's breast. He has pleaded not guilty.

The California attorney general is suing "a ring" of lawyers for allegedly defrauding at least 2,500 homeowners out of millions of dollars, a scam that was supposed to provide relief on their troubled mortgages, she said Thursday.

The civil suit filed by the state's top attorney names three law firms, three other lawyers and 14 other defendants. They are accused of sending 2 million deceptive pieces of mail in California and at least 17 other states and using misleading advertising and telemarketing practices to entice desperate homeowners to believe that they could sue mortgage lenders and stop foreclosures, Attorney General Kamala Harris said.

Harris said the defendants sold homeowners on participating in mass joinder lawsuits against lenders and promised that the suits would reduce their loan balances or interest rates, obtain monetary damages and even result in free and clear title to their homes.

The state's lawsuit seeks fines, penalties, damages and restitution in the tens of millions of dollars, Harris said in San Francisco.

"Yesterday, we broke up what we believe is a fraud ring that is national in scope," Harris said. "They were engaged in what is called a mass joinder scam."

On Wednesday, state authorities took over the law firms named in the attorney general's lawsuit, Harris said. On Monday, the law firms cited in the suit were placed into receivership, and the defendants' assets were seized and enjoined from continuing operations, Harris added in a statement.

The lawyers charged homeowners fees of up to $10,000 to make them as plaintiffs in a mass joinder lawsuit, Harris said. Such a suit involves a large number of plaintiffs in which each has their own set of facts to prove.

She claims the "mass joinder scam" involved deceptive mass mailers appearing as official settlement notices or government documents and told homeowners they were potential plaintiffs in a "national litigation settlement" against lenders. No such settlements existed, Harris said.

Also, homeowners were unable to get the lawyers to answer simple questions such as whether they had been added to the mass joinder suit, Harris said. Some lost their homes in the process, even after paying the lawyers their retainer fees.

Harris said the attorneys and other defendants also engaged in the unlawful practice of "running and capping," in which the attorneys paid commissions to "a mill" of sales representatives based on how many homeowners were signed up.

State officials said they would help the homeowners find other attorneys who could help them.

The attorney general's civil suit alleges false advertising; unfair, fraudulent and unlawful business practices; unlawful running and capping; improper fee splitting in which defendants unlawfully split legal fees with non-attorneys; and failing to register with the California Department of Justice as a telephonic seller.

According to a statement by Harris, the state's Department of Justice has seized the practices of several non-attorney defendants, and the California State Bar has seized the practices and accounts of the several attorney defendants, including the law offices of Kramer & Kaslow and its senior partner Philip Kramer.

Harris identified Kramer, an attorney in Calabasas, as "the ringleader" of the fraud.

Neither Kramer nor his law firm could be reached immediately for comment Thursday.

California State Bar President William Hebert said that a total of 20 lawyers have been disbarred or forced to resign because of loan scams since 2009. He described the attorneys' alleged scams in the nation's mortgage meltdown crisis as "nothing short of shocking." Victims of such frauds are typically senior citizens and minorities, particularly Latinos, officials said.

"The message to lawyers out there is that if you think you can take advantage of clients, you can't," Hebert said Thursday. "This is an example of a new aggressive stance we're taking against lawyers that you're going to see in the months and years to come."

Kramer & Kaslow's website states that "Philip Kramer has become the leader in the fight -- your fight -- against 'the big bad banks.' "

"The old 'loss mitigation' process may not be working any more, but we have a new and better approach, where we aim to force the banks to settle as they face multi-plaintiff 'mass joinder' lawsuits of national scope that will seek to give you financial relief if not void your mortgage loan entirely," the firm's website says.

Wednesday, August 17, 2011

In an effort to save $25,000, the Arapahoe County board charged with considering property-tax-assessment appeals has denied all requests from commercial and vacant-land owners who use an attorney. The unprecedented decision, reached late last month, comes at a time when the slumping economy has prompted more businesses to appeal their tax valuation.

County officials said they were trying to streamline the appeals process by allowing unsatisfied business owners to bypass the county board and go straight to a higher-level state appeals board.

But some tax attorneys worry that their clients have been denied a state-protected right to appeal and that some businesses won't be able to weather a longer journey through bureaucracy.

"It's discrimination," said Ray Meissner, who has represented businesses during the appeals process for 23 years. "It's unfair because they have to pay higher taxes now in hopes of getting part of it back as a refund."

State law says the county Board of Equalization "shall receive and hear petitions from any person" who couldn't resolve his or her objections to a property valuation with the county assessor.

Now, the companies that have been denied have three options: file a lawsuit in Arapahoe County District Court, request a hearing with the state Board of Assessment Appeals or enter binding arbitration.

Assistant County Attorney George Rosenberg said he doesn't believe anyone is being denied the right to appeal because unsatisfied property owners could have met with the county assessor, and they can still approach the state Board of Assessment Appeals.

Possibly a First

Chip Taylor, executive director of Colorado Counties Inc., which advises local governments, said he couldn't remember a time when a county issued an administrative denial to all business owners with a lawyer or tax agent.

Taylor declined to comment on the legality of Arapahoe County's decision, saying only: "I'm sure that they reviewed that with their legal staff."

Mike Beery, director of the state Board of Assessment Appeals, said he could not comment on the county's procedures because the state might have to hear some of the county's cases.

Beery said it is common for large businesses to request an administrative denial at the county level, but he could not remember a time when a county issued a blanket administrative denial such as the one in Arapahoe.

Beery said his board will work with Arapahoe County to schedule appeals for businesses that received the denial.

Estimated to Be Hundreds

Rosenberg and Arapahoe County spokeswoman Andrea Rasizer said they did not know how many business and vacant-land owners received the denial because their clerk was on vacation. They estimated that the number was in the hundreds.

A collection of county staff members proposed the idea to deny businesses with tax agents or attorneys, and the county commissioners approved it.

"Arapahoe County is always looking to use taxpayer dollars in the most efficient manner possible," Rasizer said. "When you look historically at how many of these cases have moved on to the state board of appeal and have requested that they get an administrative denial, they thought it was the best use of Arapahoe County taxpayers' dollars."

Rosenberg said some large businesses have thanked him for saving them a step in the appeals process. Others were neutral or angry, he said.

Rasizer and Rosenberg said they did not know how many businesses request a denial in any given year.

Both said the blanket denial allowed the county to save about $25,000 by reducing the number of hours they had to pay a referee to listen to the appeals cases.

"This is the first time we've done it," Rasizer said, "and it may not be permanent."

By Liz Navratil, The Denver Post, lnavratil@denverpost.com or 303-954-1054

Facebook's lawyers filed evidence this week that they say shows a contract being cited in a New York man's suit over a stake in the company is an "outright fabrication."

In court papers filed with the U.S. District Court for the Western District of New York, Facebook attorneys say they have found the original 2003 contract between the man, Paul Ceglia, and Facebook CEO Mark Zuckerberg, who was then a student at Harvard. The document that they've attached to their filing is for programming work on Ceglia's business StreetFax.com and contains no mention of Facebook or anything similar.

Ceglia originally sued last year claiming that the 2003 contract included a $1,000 investment in what would eventually become Facebook, entitling him to a large ownership stake in the social-networking giant. Since the suit was filed, Facebook has maintained that the contract cited by Ceglia was a forgery.

The new document "was found embedded in the electronic data from 2004 on Ceglia's computer," Facebook's attorneys wrote. "This smoking-gun evidence confirms what Defendants have said all along: the purported contract attached to the complaint is an outright fabrication," they added.

Ceglia's attorney did not immediately respond to a request for comment.

Facebook's lawyers also say in the latest filing that forensic analysis shows key documents concerning Ceglia's claim of ownership were stored on removable storage devices that are now missing. But their analysis was able to find out the types of devices and that they contained files like "Zuckerberg Contract page1.tif," they say.

"Ceglia apparently did not realize that when a storage device of this type is attached to a computer, it leaves a digital fingerprint," the lawyers write.

The attorneys, from the firm of Gibson, Dunn and Crutcher, claim that Ceglia may have used the devices to manipulate the documents in the belief that the evidence would not be found. In the papers, the lawyers call the missing devices, "the digital equivalent of throwing critical evidence into Lake Erie."

In an Aug. 10 filing, Ceglia's attorneys said no basis has been shown for an accusation that Ceglia and his lawyers concealed any documents.

Tuesday, August 16, 2011

Consolidation in health care industry spurs migration of attorneys to large multipractice firms

When Gerald Hinkley decided on a change of scenery for his health care practice, small and regional firms didn't make his shortlist. With deals he's handled for community hospitals and academic medical centers growing bigger and more complicated each year, Hinkley was looking for a big firm with its fingers in everything from government regulations and litigation to corporate transactions and real estate. Hinkley joined Pillsbury Winthrop Shaw Pittman as co-chairman of the health care industry team last January after 15 years at Davis Wright Tremaine.

"The client base hasn't changed, but the complexity of what they need has really changed," Hinkley said. "Davis Wright was a great firm, but to maintain my client base I needed to be more full service in California." Last year, he says, he worked with 42 Pillsbury attorneys from different practice areas -- including lawyers from the corporate, litigation, real estate, M&A, pension, tax and regulatory groups. He said he had some access to that variety of expertise at the 425-attorney Davis Wright, but they weren't in California, the state most of his clients call home. (Hinkley has represented Marin General Hospital, Lucile Packard Children's Hospital at Stanford and ValleyCare Health System in Pleasanton, among others.)

"I was having trouble bringing non-health care specialty work like ERISA, tax and corporate and securities in because the lawyers were not nearby," Hinkley said. "Pillsbury has 300 lawyers in California and we basically do everything you can think of."

Hinkley's not a special case. When seasoned health care lawyers leave a firm these days, their typical destination is a firm of the same size or bigger. Last February, Sacramento, Calif., managed-care litigator Stephen Goff took his team of 10 lawyers from 90-lawyer McDonough Holland & Allen to 3,500 attorney DLA Piper. This past May, litigator William Helvestine left 270-attorney Epstein Becker & Green, focused almost exclusively on labor law, government contracts and health care, for the 500-lawyer Crowell & Moring. Like Hinkley, they say the broader trends that are reshaping the health care industry -- particularly consolidation and increased regulatory scrutiny -- are making their work more complex.

The cases and deals are bigger and call for teams of specialists from diverse practice areas. Billing rates seem to bear out the transformation of what was traditionally a lower-middle market practice. Health care partners at big firms say they're billing $500 to $900 per hour, in line with counterparts in traditionally higher-rate practices. Los Angeles Sheppard, Mullin, Richter & Hampton partner Eric Klein said his 70-lawyer team's work carries no heavily discounted rates compared to other corporate deals. "There's so much demand right now -- there's really not much reason to discount unless it's a large multimillion-dollar client."

And some midsize firms have felt the pressure. The McDonough Holland firm dissolved in the year after Goff and his managed care litigation group departed. Los Angeles-based health care boutique K&R Law Group shuttered in mid-2006 shortly after major client PacifiCare Health Systems Inc. was acquired by UnitedHealth Group Inc. UnitedHealth had legal relationships in place, mostly with big firms, said Robert Hayden, an employment law attorney formerly at K&R and now at Rheuban & Gresen in Encino, Calif. K&R's health care lawyers handled regulatory, corporate and litigation work, he said.

One exception is Los Angeles-based health care boutique Hooper, Lundy & Bookman. The 57-lawyer firm appears to be thriving, according to other health care lawyers. Two partners at the firm did not respond to interview requests for this story.

Martin Fineman, the partner in charge of Davis Wright's San Francisco office, said he agrees with the premise that health care is gravitating toward large multipractice firms. But he said Davis Wright maintains a broad health care practice with 13 full-time attorneys in California alone -- more, he contends, than Pillsbury -- representing hospitals, health care systems, physicians, academic research institutions and other clients. "I'm surprised at the idea that Gerry left here because those elements aren't present at this firm or that they were better available at Pillsbury," he said.

The Big Get Bigger

The quest for scale by big hospital and physician groups and health plans has been one major driver of change. Sheppard's Klein said the country's health care sector is in the midst of the biggest wave of consolidation since the 1990s. In the past two years, he said, between a third and a half of all medium to large managed-care physician groups in California have been a buyer or seller.

"What's happening across the country is hospital systems are reaching out and acquiring doctors at an incredibly quick pace," Klein said. "California is having huge amounts of activity in the acquisition of physician groups by hospital systems and by HMOs."

In the past year, Klein's group has represented Bristol Park Medical Group, which was acquired by Memorial Health Services, a large hospital system in Orange County. Sheppard also represented Talbert Medical Group Inc. in its merger with HealthCare Partners Affiliates Medical Group, one of the biggest physician groups in the state.

Between the health reform law and pending Medicaid and Medicare overhauls, he anticipates more of the same. "The big are getting bigger -- that's causing the consolidation process to further accelerate," Klein said. "By the time folks in D.C. figure out what it is they're doing, the entire health care system will have changed."

As clients get bigger, they invariably bring more work in house. Paul, Hastings, Janofsky & Walker partner James Owens, who focuses on transactions and regulatory matters for large health systems, said more of his clients have sophisticated in-house departments. Many are staffed by his former colleagues and competitors from other firms. Owens said they handle the more day-to-day work and farm out strategic M&A and affiliation or antitrust and tax matters to big firms like his. Paul Hastings, which has about 30 health care attorneys in California, advised Arizona-based ambulance services company Rural/Metro Corp. in its acquisition by Warburg Pincus this past June.

IP expertise, another area where big firms tend to have more depth, is also in demand. Owens said IP attorneys with market knowledge are needed to draft agreements for the sale and ownership of new surgical techniques or treatments. Privacy concerns surrounding medical information add an additional area of compliance to the health care practice, Owens said. But that's work practitioners can handle at smaller firms, he said.

The rising tide has lifted litigators, too. Helvestine said Epstein Becker was one of a few specialty firms involved in an early mammoth multidistrict case involving health insurers about 10 years ago. Venued in Miami, In re managed care litigation involved more than 600,000 doctors -- at the time the largest class ever certified -- and many medical groups and associations, Helvestine said. Skadden, Arps, Slate, Meagher & Flom; Gibson, Dunn & Crutcher and O'Melveny & Myers, among many others, worked on the case. "But that was a much larger and more complex nationwide class action litigation than at the time we typically handled," Helvestine said of Epstein. "You saw the entry of the really large Am Law 100 firms into the health care arena. [As a result] the smaller firms are having a hard time keeping up."

With his own work more and more driven by complex litigation matters, Helvestine decided Crowell & Moring had more to offer. Crowell had beefed up its California litigation base with a group of white-collar lawyers from Talcott, Lightfoot, Vandevelde, Woehrle and Sadowsky in Southern California in late 2008, and a year later with a team of San Francisco and L.A. litigators from Folger Levin & Kahn.

"If you are a single-specialty or limited-specialty firm, sometimes you have trouble attracting other specialties to the firm," Helvestine said.

An Era Of Specialists

Health care partners are drilling down into specialties within their own practices, too. Sacramento litigator Goff said his mentors were generalists handling a lot of different matters, such as managed care contracting and licensing work. Now, attorneys who do managed care work, like himself, usually don't do any regulatory work and vice versa. Goff specializes in handling contract and other disputes between health care providers and payers, as well as problems that arise out of acquisitions and spinoffs of health care businesses. "Because of the incredible specialization, you have a real desire to be at a larger firm where you can carry all those specializations," Goff said. "Health care organizations are needing the kind of services that big firms provide, and that's hard to get in the small boutique anymore."

Patrick Kapsner, the chief executive of MemorialCare Medical Foundation, said he's always turned to big law firms for major business transactions. For real estate-related work, he's tapped Steven Sunshine at Bryan Cave. Sheppard's Klein handled the combination of Bristol Park Medical Group, where Kapsner had been CEO, with MemorialCare Medical Foundation.

Kapsner said the advantage of big firms is their "grander perspective" -- Big Law attorneys know how transactions are structured in other states and countries. They know the difference between Northern and Southern California, which Kapsner says are unique markets. "You can get a really fine boutique attorney, but without the experience of other locales you don't get the same overall vision of what others are doing," Kapsner said.

Still, nothing trumps a top-notch specialist. Kapsner said he turns over contract negotiations with health plans to Karen Kaplan of four-lawyer Rosenberg and Kaplan in Beverly Hills. "It's a very unique skill set that that boutique does extremely well," Kapsner said. "If Karen was acquired by a big firm, I would be moving to that big firm."

Casey Anthony is not going back to Orange County, Fla., without a fight.

Lawyers representing Anthony will appeal a court order mandating her to return to her home state to serve probation for a check-fraud conviction.

Last week, Judge Belvin Perry ordered Anthony to report to a probation officer in Orange County by noon on Aug. 26 -- but her attorneys argue that the 25-year-old already served the time, CNN reports.

Anthony was found not guilty of murdering her 2-year-old daughter Caylee in July after a controversial trial. But due to a previous conviction for cashing $644.25 of bad checks using a friend's stolen checkbook, Anthony still faces one year of supervised probation.

In dispute is whether Anthony served her probation while in jail awaiting trial, or whether she must fulfill the probation after her release.

Due to a clerk's mistake, a court order outlining Anthony's probation did not include the words "upon release," CNN notes.

On Aug. 1, Florida Circuit Judge Stan Strickland amended the probation order, forcing Antony to return to Florida within 72 hours, according to The New York Post.

The following day, Anthony's attorneys issued a motion to "quash, vacate and set aside" Strickland's order, claiming they had evidence proving she had already served her probation while in jail.

The new ruling, issued by Judge Perry -- the same judge who presided over Anthony's murder trial -- notes "[i]t is clear the court stated the defendant's probation was to start once she was released from jail."

Anthony's attorneys intend to challenge Perry's order.

If Anthony's lawyers are unable to prove that Anthony already served her probation, they will request she be permitted to serve it in a different state, TMZ notes.

Anthony's lawyers say she has received death threats. A recent poll named her the "most hated" person in America.

Monday, August 15, 2011

Attorneys for a co-defendant in the high-profile drug case that took down a top aide to Mayor Thomas M. Menino want to know whether pressure to testify drove the prosecution's star witness to kill himself.

When Anthony Cristallo, 41, goes to trial on drug-dealing charges today, the U.S. Attorney's Office hopes to make use of video and taped phone calls the late Mark J. Allen, 43, of Peabody recorded of and about Cristallo for the Drug Enforcement Administration in 2009.

The day he died of carbon-monoxide poisoning - on the eve of Cristallo's original May 17 trial date - Allen was a no-show at a court hearing where he was due to plead guilty to drug charges. Cristallo, a convicted killer, was a co-defendant of John Forbes, 31, Menino's liaison in East Boston until his arrest in 2009. Forbes pleaded guilty last fall to drug charges and received five years of supervised probation.

In court papers, Cristallo's lawyer Barry P. Wilson asked federal Judge Rya W. Zobel to order prosecutors to turn over files on Allen so he can determine whether "pressures caused by this case are what ultimately led to (Allen's) death." Prosecutors have asked Zobel to keep jurors from learning Allen took his own life, calling it "irrelevant" and "highly misleading for the jurors." However, they do want jurors told his death is the reason he's not appearing to testify as a cooperating witness.

Cristallo is accused of selling Allen 115 oxycodone pills worth $4,370 and a sample of marijuana May 18, 2009, in East Boston while the DEA had wired Allen with a video recorder. Wilson wants that video barred as evidence.

Allen's elderly mother told the Herald her son, a former correctional officer, was worried both about doing time and possibly entering witness protection. Shortly before his death, he startled her by drawing up a will. Three days before committing suicide, he paid her an ominous visit. "He said, ‘Ma, I had 43 good years,' " she said. "He gave me a hug and a kiss. He told me I was a great mom."

Reporting from Minneapolis - Burdened by sagging poll numbers, hamstrung by poor economic news, and trapped in Washington for much of the summer because of the debt ceiling fight, President Obama will seek to reverse his recent fortunes by hitting the open road.

Obama Monday will embark on a three-state, five-town bus tour deep in the heart of the American Midwest, hoping to tell the public - and potential voters--some small-business success stories and highlight economic development in rural areas. He'll also be looking to rebut criticism that he's not focused on finding solutions to bolster the flat-lining economy.

The campaign-style swing comes at a time when a new Gallup Poll shows the president sliding below a 40 % approval rating for the first time - and when Republicans appear energized by the entry of Texas Gov. Rick Perry into the 2012 presidential field, as well as the blossoming candidacy of Rep. Michele Bachmann.

Although the White House says the timing is coincidental, Obama will be visiting Iowa on the heels of Bachmann's triumph in the GOP Straw Poll and Perry's visit to the state, delivering a counterargument to the candidates' incessant attacks on his handling of the economy. It should also serve as a reminder of happier times: His victory in the 2008 Iowa caucuses served as the springboard to the Democratic presidential nomination.

The tour will launch in the small town of Cannon Falls, Minn. Monday, where the president will conduct a town hall, and then continue on to small hamlets in Iowa and Illinois along the spine of the Mississippi River. Obama won all three states over John McCain in 2008, but such rural towns sit outside the president's political comfort zone.

Still, Obama made regular stops in rural outposts during his first campaign. The trip, White House aides say, is part of an economic initiative to help such communities gain access to credit, spur agricultural innovation, and better connect to the world's digital business infrastructure.

On Tuesday in Iowa, the president will host a rural economic forum that will be attended by Agriculture Secretary Tom Vilsack and other campaign members that will be similar to an event the White House held in Cleveland in the spring.

The president could be colliding directly with the tea-party forces that have helped disrupt his first term. When he visits two tiny towns in Illinois on Wednesday, he'll pass through a region that sent two freshmen, Reps. Randy Hultgren and Bobby Schilling to Washington last year as part of the Republican wave.

The risk for the White House is that when many critics, including Democrats, are clamoring for Obama to do something big on the economy, a three-day jaunt down America's backroads could end up looking like just the opposite. He's also likely to hear complaints from local residents about his administration's economic and environmental policies, as well as the divisive healthcare overhaul.

The White House maintains the president will confine his remarks to the economy and will not go after his potential GOP presidential opponents. But at the very least, however, the trip should afford him a chance to renew his connection with a public that has been showing signs of increasing discontent with his administration--while perhaps reminding it of Obama the promise-laden candidate as opposed to the president who at times has appeared under siege by intransigent Republicans, disappointing economic news, and a wildly erratic stock market.

The see-sawing financial markets may provide one undercurrent of tension during the three-day tour; Bachmann, Perry, and Mitt Romney perhaps another. White House aides say not to expect a grand economic address during the trip, but Obama's critics, which include Democrats, are watching and waiting.

"I continue to respect him greatly as a human being," said Peter Buttenwieser, a major Democratic fundraiser who supports Obama's re-election. "I consider him a friend. I'm extremely disappointed in the way in which he has conducted his presidency, above all on the jobs and economic issues."

Buttenwieser suggested that Obama deliver a game-changing speech on the economy on a par with the address Obama gave on race relations during the 2008 campaign.

"It has to be from the heart and it has to be both intellectual and emotional," he said.

Paul Begala, a former campaign aide to Bill Clinton who now advises a political action committee, Priorities USA Action, started by two ex-Obama aides, called for "bold action.”

"The whole focus of the country for the last month has been on these terrible negotiations over the debt ceiling. That hurt everybody. He's got to turn the page,' Begala said. "The president can't wave a magic wand, but he has the power to set the agenda. Now's the time."

Saturday, August 13, 2011

Shipman & Goodwin LLP is pleased to announce that five of its attorneys have been selected to serve on key committees of the Young Lawyers Section of the Connecticut Bar Association. The primary goals of the Young Lawyers Section are to promote justice, encourage public service and promote diversity and education of young lawyers and newly admitted practitioners.

John DiManno is now the Co-Chair of the Education Law Committee. DiManno practices in the areas of employer defense and labor relations and can be reached at jdimanno@goodwin.com or 860-251-5785.

Sara Goldfarb, named the Special Projects Co-Director, has been active in the Young Lawyers Section in a variety of roles since 2010. She represents clients in government investigations, internal investigations and white collar criminal matters; she can be reached at sgoldfarb@goodwin.com or 860-251-5626.

Julianne Lombardo has been selected as Co-Chair of the Federal Practice Committee for a second year. She practices in the area of government investigations and white collar criminal defense and can be reached at jlombardo@goodwin.com or 860-251-5833.

Peter Murphy is the Co-Chair of the Education Law Committee for the second year, after serving on other committees since 2008. Murphy represents public and private sector employers in a wide range of labor and employment matters; he can be reached at pmurphy@goodwin.com or 860-251-5950.

Amber Sarno has been named Co-Chair of the Environmental Law/Planning & Zoning Committee. She is a member of the firm's Environment, Energy and Land Use practice group, working primarily in environmental and land use permitting and litigation. She can be reached at asarno@goodwin.com or 860-251-5043.

Shipman & Goodwin LLP is a full-service law firm with more than 140 attorneys and offices in Hartford, Stamford, Greenwich and Lakeville, Conn. and in Washington, D.C. Founded in 1919, the firm's attorneys represent many businesses, institutions, individuals and government entities in Connecticut and throughout New England and nationally. For more information, please visit www.shipmangoodwin.com.

Attorneys for McHenry County Sheriff Keith Nygren are accusing a former deputy of perjury and say a federal lawsuit he filed should be tossed as a result.

Zane Seipler is suing Nygren and several other members of the sheriff's department, alleging that he was fired for blowing the whistle on racial profiling.

As part of the lawsuit, Seipler received confidential documents that were under court order not to be revealed, but attorneys for the sheriff said Seipler posted them on an anonymous blog.

"The Real MCSO Exposed" website since has been removed.

"The documents were highly confidential and contained personal information about third-party officers, causing them embarrassment and damage to their reputations," attorney Elizabeth K. Barton wrote in the court filing.

Seipler submitted an affidavit saying that he did not know who owns the website, has not knowingly had a conversation with the owner, and did not disseminate the documents.

But Jim Sotos, also an attorney representing the sheriff, said that a subpoena to Google revealed that Seipler's personal email address was listed as a secondary email for the blog and that the IP addresses matched.

Attorneys for the sheriff said Seipler "willfully lied" to the court and that it was a "stunning display of brazen misconduct."

"[I]nstead of admitting to this abhorrent behavior, Plaintiff submitted a false affidavit to this Court, which he signed under penalty of perjury, stating that he had no knowledge of the blog's author or how the documents appeared on the blog," they wrote.

They are asking that the case be dismissed with prejudice so that it cannot be refiled.

An attorney for Seipler was unavailable for comment, but in previous court documents suggested that Nygren and the other administrators named "have lost control of their own clients."

"Sheriff employees, unhappy with the tyranny of a Sheriff who lies to stay in office, has so many ‘defectors' that people are willing to put departmental documents into the public view to expose the misconduct of the Sheriff and his staff," Blake Horwitz wrote.

Nygren fired Seipler for writing traffic tickets to passengers, rather than drivers who did not have valid licenses. Seipler successfully fought that firing, although Nygren still is appealing.

Seipler also has a pending petition in which he asks for a special prosecutor to investigate Nygren, whom he says has been using a seven-point star for both political and official purposes.

Thursday, August 11, 2011

state. But the defense lawyers say they need the information to defend their clients.

"[Cochran] should not be permitted to prejudice [the defense's] ability to discover potential or other causes of her emotional injury ...," the defense court papers state.

Cochran maintains her emotional ordeal from losing her job on the show has included suicidal thoughts, depression and anxiety, difficulty sleeping and nightmares, according to defense attorneys.

In a sworn declaration in support of the defense motion, Rosenberg says the limits Cochran's attorneys want to place on his examination are unrealistic.

"This limitation on my psychiatric examination of Ms. Cochran is not consistent with appropriate and generally accepted standards of the psychiatric evaluation process," according to Rosenberg.

A hearing on the defense motion is scheduled Aug. 31.

Cochran's son was stillborn and her daughter was born before reaching full term.

Another former show model, Shane Stirling, also is suing the same defendants. She modeled on the show from July 2002 until August 2008 and alleges she was fired in 2006 after she announced that she was expecting a baby.

According to Stirling's complaint, she was "forced into an early pregnancy leave, and was not allowed to come back to work for almost a year after the child's birth, and was fired abruptly."

The woman alleges now-retired show host Bob Barker said her pregnancy made her "dangerous" and "a liability."

Stirling's complaint alleges that Barker told her that she should "go home and take care of your baby." She says she was not allowed to work while she was expecting, then was finally allowed to return to the show in 2008 and was quickly fired, and told that the show was going in a different direction.

"Does your law firm have a formal attorney training program for new lawyers?"

I have been on both sides of this question. As a 2L interviewee seeking a summer associate position in a Chicago law firm, I was counseled to ask this question of each firm I interviewed with. Later, as an active member of my law firm's recruiting committee, law students routinely inquired about our in-house training and new lawyer development programs.

As a rule, the answer to this question is a resounding "yes." This "yes" derives from a number of things. Invariably, the interviewer hopes to convey a positive impression of the firm. The interviewer can probably even recall some mandatory in-house continuing legal education programs for new lawyers (deposition training and negotiation skills are routine topics for in-house CLE courses and arguably constitute new lawyer training). And, for the most part, law firms do intend to provide formal training and mentoring for their new lawyers.

In reality, however, most law firms provide cursory, if any, training for new lawyers. With some exceptions, comprehensive, jurisdiction-specific practical skills training programs for new lawyers almost universally do not exist. Any training law firms do provide is typically disjointed and spread out over months or years. In short, law firm training often falls far short of preparing new lawyers to actually practice law in a law firm. (On-the-job training for new lawyers also falls short. Senior attorneys — in large firms, in particular — expect new lawyers to pick up practical skills on the job but are hesitant to give new lawyers the substantive legal work that would help develop these skills. And some clients prohibit new lawyers from working on their files entirely.)

Law firms are not to blame. Developing a comprehensive in-house training program for new lawyers is a cumbersome and costly undertaking. Developing such a program is certainly counter to a firm's immediate and pressing concerns of servicing clients and watching the bottom line. Small and midsize firms do not have the resources to devote to such a program. Likewise, with the increased pressure to bill hours at both the partner and associate level, attorneys in big law firms cannot afford to spend the nonbillable time necessary to develop an effective training program. For every hour a firm associate or partner spends developing and presenting a new lawyer training program, the firm loses hundreds of dollars and delays important client work. (Also, just as not all law school professors make the best lawyers, not all law firm practitioners make the best teachers.)

With this said, there is significant value in training new lawyers in practical skills. Well-trained new lawyers will contribute meaningfully to their law firms from day one. When new lawyers can independently handle basic practitioner tasks, senior attorneys will no longer have to spend otherwise-billable hours answering rudimentary questions or coaching new lawyers through such tasks (saving the firm literally thousands of dollars in both the senior attorneys' and new lawyers' time). Finally, when new lawyers undergo intensive training before starting at law firms, fewer costly, embarrassing mistakes will be made.

The subject of new lawyer training and development and the difficulties with implementing this training is increasingly a topic of conversation in the legal community. One palpable solution is for law firms to outsource new lawyer training. This ensures that all incoming new lawyers are, at a minimum, trained in fundamental practical skills before they even set foot in a law firm. It also ensures that new lawyers are exposed to fundamental skills in a uniform, comprehensive manner by professionals who have experience in both law and teaching. From a business standpoint, outsourcing new lawyer training (to the proper company) is a prudent investment with a tangible return on any money spent up front. The expense of the present model, whereby new lawyers are often paid a six-figure salary but are unfamiliar with, and unable to perform, the most basic tasks, is far greater. Likewise, the expense of developing a comparable program in-house easily surpasses any outsourcing costs. (This proposed outsourcing model is not new. Fortune 500 companies routinely outsource performance training, from sales employee to management personnel training.)

New lawyers are bright, ambitious people. If given the opportunity, they can easily master the core, practical skills required to succeed in a law firm. And new lawyers are eager to learn these skills. As it currently stands, however, new lawyers are not given the opportunity to do so.

Does your law firm have a formal attorney training program for new lawyers?

Baer, who has been practicing family law for 20 years, feels his speciality calls for something other than a winner-loser mentality.

"Law schools train attorneys to spot problems but not how to solve them," Baer said. "By teaching lawyers to identify problems but not training them to solve them, the practice of law has shifted from resolving conflict to creating it. This is particularly detrimental in cases dealing with children and families as it causes wounds that often last a lifetime."

Baer is calling for the nation's law schools to teach problem solving as part of their curriculum. And not just one course in it.

"You don't major in any speciality in law school," Baer said. "Basically, law school prepares you to pass the bar. It is after you pass the bar that you go out into the real world, maybe serve an internship, and eventually decide what you want to specialize in.

"So many lawyers, depending on their undergraduate major, really don't bring a lot of problem-solving skills to the profession. Or an understanding of human nature. It is time law schools started teaching those skills."

Baer points out this shortcoming may not affect a criminal lawyer's performance, but in family law it can be a serious flaw. "When you are dealing with stress-filled situations like divorce, paternity questions and family battles over an estate, sometimes the courtroom is the worst place to solve them," Baer said. Kevin Stapleton of the Covina-based law firm Stapleton & Stapleton agrees with Baer, up to a point.

"Problem-solving skills are important," Stapleton said. "However, the nature of law practice is that you are the advocate for your client. There's one on each side. And the judge is the mediator between them.

"It's true that a client needs to have reasonable expectations, but it is also reasonable for him or her to expect that you will present their side to the best of your ability. That may be to negotiate a settlement or it may be to take the case to court."

Both Baer and Stapleton agree that divorces often bring out the worst in both sides, especially if minor children are involved.

Baer gives the example of a divorce he recently handled. A couple, with two school-age children, were splitting up. His client, the husband, was adamant that he wanted to force the sale of their house. However, he also wanted the two children to remain in the public school system where they were currently enrolled.

"When I went through this with the husband, and he did some cost comparisons, he realized it was in the children's best interest, and his own economic best interest, to allow his ex-wife to continue to live in the house, rather than force a sale," Baer said. "A sale would have forced the ex out of the house into a rental in a lesser-regarded school district. It would have also removed the tax benefits that come from owning a house."

Had he gone to a less-experienced lawyer or one with an aggressive approach, he could easily have wound up in a lose-lose situation, Baer said.

"What are your rights in a divorce? Only two: you have the right to become unmarried, and you have the right to remain a co-parent. Everything else is negotiable. Given that, do you want a problem-solver, or do you want someone who is going to fight over every dish?"

Baer feels, big-picture, the problem is that society is more and more specialized and more and more myopic.

"Common sense is not so common these days," Baer said. "It requires a knowledge of the full picture. And you have to be able to separate emotion from the issue at hand.

"A good family lawyer will be able to bring those qualities to a case. But if they aren't taught problem-solving skills in law school, where can they get them?"

More than 500 emails between beleaguered Northwestern University journalism professor David Protess and his students detailing their effort to free a man serving a life sentence should not be protected under state law that shields journalists from revealing unpublished work, Cook County prosecutors argued Tuesday.

In seeking the release of the communications, Assistant State's Attorney Celeste Stack said the student journalists investigating the alleged innocence of Anthony McKinney were essentially "generating evidence" at the behest of Northwestern's Center on Wrongful Convictions, not acting as working reporters.

"There was no business of collecting news for publication," Stack told Criminal Courts Judge Diane Cannon. "They collected evidence to present in court. … It's clear that the lawyers were running the show."

Lawyers for the Medill School of Journalism argued that the state's law shielding reporters is broad and covers not only mainstream news media but also "advocacy journalism" that crusades for a cause or takes a certain point of view.

"Even yellow journalism is still journalism," said attorney Gabriel Fuentes.

It has been almost three years since Northwestern lawyers petitioned for a new trial for McKinney — convicted of a 1978 shotgun slaying in Harvey — based on the investigation by the Medill Innocence Project that included recanted testimony, new alibi witnesses and interviews with dozens of people involved with the case.

In response to a 2009 subpoena from the state's attorney's office, the university turned over reams of student memos, emails and other class materials that had been shared with attorneys for the Center on Wrongful Convictions, but it has fought the release of internal emails based on the reporter privilege law.

Meanwhile, the university launched its own investigation and concluded that Protess had lied about what information was shared with McKinney's attorneys, a charge Protess denied. The falling-out eventually led to Protess announcing in June he was leaving Northwestern to found his own innocence project. He is set to retire from the university on Aug. 31.

On Tuesday, Stack revealed that within the last two months, Protess found a binder containing 98 pages of documents on the McKinney investigation while he was cleaning out his office, in spite of the university's earlier assurances that it had turned over all the relevant evidence. The binder included a two-page memo from a former student detailing a meeting between Protess' students and McKinney's lawyers that further shows evidence of their collaboration, Stack said.

Prosecutors have also contended that in many cases verbatim notes and transcripts were never turned over to them and they were given only edited versions of some videotaped interviews.

Tuesday, August 9, 2011

IF THE LEGISLATURE and Gov. Corbett succeed in privatizing wine and liquor sales, one large Pittsburgh law firm is well-positioned to cash in, thanks to its unusual help in writing the would-be law.

Two lawyers with the megafirm Eckert, Seamans, Chernin & Mellot helped draft House Bill 11 to sell off the State Stores. The bill's prime sponsor is House Majority Leader Mike Turzai, R-Pittsburgh.

The law firm's political-action committee has made campaign contributions to Turzai, Corbett and many other politicians and candidates.

The Eckert lawyers, based in Harrisburg, are Alan Kohler and Mark Stewart. Kohler is a registered lobbyist representing casinos and gambling interests. Stewart is a former lobbyist.

While it's not unusual for outside counsel to be hired to help write complex laws (despite that the Legislature is awash in well-paid staff attorneys), the Eckert lawyers worked for free.

Stewart did not return a call for comment. Kohler referred me to Turzai's lawyer.

When I ask Turzai's general counsel, Jim Mann, about the arrangement, he says: "I think it's unusual but not unheard of."

Several attorneys in and out of government and the Legislature, as well as lobbyists with whom I discussed this, could not name another instance like it.

Lobbyists routinely offer legislative language on behalf of clients. This is a law firm offering to draft a major policy change from which it can benefit.

Two things strike me.

First, Eckert is positioned to be the firm to represent those seeking booze licenses. (Kohler's page on Eckert's website already touts his involvement in "the development and drafting" of the bill.)

"That might be," Mann says, "but when we brought them in it was for their expertise because Rep. Turzai wants legislation that will actually work."

So, I'm sure, does Eckert.

Second, Turzai's bill doesn't impact beer, except by improving sellers' futures by allowing them to get licenses to also sell liquor and wine.

Eckert represented the state's Malt Beverage Distributors Association last year in an effort to prevent beer sales in large stores with restaurants.

The state Supreme Court in December ruled unanimously in favor of such sales.

Mann insists that there's no conflict. He says that the decision not to impact beer was made before Eckert lawyers got involved; he adds that both have expertise in privatization issues.

The firm certainly does. It just represented a privatization coalition of grocery stores and retail outlets seeking the selloff of Virginia's state liquor stores.

That effort died in the Virginia Legislature in February.

Eckert is a national firm with offices throughout the East and more than 300 lawyers. It's politically active and connected.

Its senior counsel and former chairman is LeRoy S. Zimmerman, who also heads the multibillion-dollar Hershey Trust. He's long involved in GOP politics (he personally gave Turzai $500 last year) and is a former state attorney general.

The Eckert firm, since 2007, gave more than $546,000 to state candidates and political committees of both parties - including $45,000 to Corbett and $4,300 to Turzai.

One could argue, in the obvious absence of competent attorneys working for the Legislature, that it's better to get free outside help than to spend tax dollars for it.

But the cross-allegiances and political ties wrapped around this instance serve as yet another example of public policy being shaped with more than the public interest in mind.

Lawyers defending Michael Jackson's last doctor in his involuntary manslaughter case face a Tuesday deadline to satisfy a judge's order ahead of the trial's start.

The lawyers for Dr. Conrad Murray have been ordered to hand over to prosecutors all of the statements and reports gathered from potential defense witnesses.

California court rules require both sides to meet certain discovery requirements 30 days before a trial starts, which is Tuesday in the case of Murray, who is charged in Jackson's 2009 death.

"We've been down this road before, and I hope we don't have to go down it again," Los Angeles County Superior Court Judge Michael Pastor said during a hearing Monday after prosecutors complained that the defense was holding back.

Prosecutors have not seen statements from 76 of the 103 people on the defense witness list, documents which would let them know what they might testify about, Deputy District Attorney David Walgren said.

"We can resolve this," lead defense lawyer Ed Chernoff told the judge. The defense has insisted it has handed over everything it has collected, but that many of the potential witnesses have not cooperated.

Pastor ordered lawyers back to court Wednesday morning, 29 days before jury selection is set to begin, so he can "get a handle" on the discovery issues.

The judge moved talks about jury selection from open court into his chambers Monday morning. The lawyers are drafting the questions they'll ask potential jurors next month.

"It never stops," Pastor said, referring to his concern that parts of the jury questionnaire might be leaked to the media.

The 129 questions posed to nearly 500 potential jurors in March and April were made public after the jury pool was whittled down to 171 people. But the process has to be repeated since the trial was postponed for several months to allow lawyers more time to prepare.

Defense lawyers have said they are worried that jurors may be tainted by what they hear about the case on television, singling out HLN's Nancy Grace for delivering what they said amounted to nightly prosecution arguments during the Casey Anthony trial.

The prosecution told Pastor Monday that they want him to review medical records for Murray's patients to decide if they could use them in the trial to demonstrate the doctor's prescription practices. None of the patients are related to the Jackson case, Walgren said.

Pastor questioned the legality of prosecutors having private medical records protected by federal law without the patients' permission.

Doing so would prevent young attorneys from getting experience and training at Kane's expense, then jumping to those other counties for better pay (and often, lighter caseloads), he said at his monthly news conference Tuesday. He made the same argument when presenting his 2012 budget to the county board committee of the whole July 26.

Kane has 58 assistant state's attorneys. The starting pay is $40,000 per year. McMahon proposes raising that to $53,000.

His salary study shows that assistant state's attorneys in McHenry, DuPage, Lake and Will counties make from $51,626 (McHenry) to $54,150 (DuPage). A beginning federal attorney with no experience starts at $50,287, and a beginning attorney with the state attorney general makes $53,000.

Those who take jobs elsewhere are often handling less-serious cases for more money, he said.

The assistant state's attorneys typically start out prosecuting cases in the traffic division, then move on to misdemeanors, juvenile delinquencies and then felonies. McMahon said that the more experienced an attorney is, the better they are at evaluating and preparing cases and conducting plea negotiations. Having stronger cases gives defendants more incentive to enter pleas, he said, and should cut down on jail stays, saving money that way, he said.

"I want the best and the brightest to work here in Kane County," McMahon said.

Giving the raises would factor in to a 16.1 percent increase in the budget's line item for salaries and wages. But that line item also covers salaries for other office personnel.

"We're aware these are very difficult economic times," McMahon said.

At last week's budget presentation, county board member Jim Mitchell suggested phasing raises in over three years. McMahon said he is willing to do that, although he suspects that won't initially slow down the loss of attorneys. And the current county board cannot bind a future county board to such a plan, he said.

At that same meeting, Public Defender Kelli Childress also asked for pay raises for her starting attorneys, who make a little more than $38,000 a year. She, too, said Kane paid the lowest wage around.

Two local personal injury lawyers -- Sam Bernstein and Joumana Kayrouz -- are slugging it out on metro Detroit freeways and major surface streets to get their names and numbers in front of accident victims. They are the most visible competitors among local lawyers, who increasingly are buying billboards to pursue clients.

Bernstein, 67, of Farmington Hills is a king of Detroit legal advertising, spending millions of dollars on television commercials over three decades to become a household name.

Kayrouz, 47, of Southfield is a relative newcomer. She's a Lebanese immigrant who got her law degree in 1997 and opened what she describes as the first female-owned personal injury law firm in Michigan.

Kayrouz told the Free Press in an e-mail from Lebanon over the weekend: "I ... never worry about what other attorneys do."
Southfield lawyer Joumana Kayrouz gets the billboard advertising ball rolling

Metro Detroit's three major billboard companies say there has been an uptick in advertising on billboards by law firms in recent years.

They attribute it to lawyers competing for clients in tough economic times and in a state where the Legislature and the courts have made it tougher to collect for clients hurt in auto accidents, slip and falls, medical malpractice and other personal injury cases.

Last year, lawyers spent nearly $790 million nationally on ads, an 8% increase over 2009, according to Kantar Media, which tracks advertising spending.

Billboards cost about $1,200-$4,500 per month, depending on location, size, duration of the contract and the number of boards being rented, according to the billboard companies.

"She came out of nowhere with a very unique idea," Johnson said. "Because of her success, you see the big hitters doing the same. She's done a great job."

Personal injury lawyer Sam Bernstein, who began advertising in the late 1970s after the U.S. Supreme Court lifted the ban on lawyer advertising, wouldn't discuss his advertising budget or how many clients his ads bring in. But he said his billboard spending is "miniscule" compared with what he spends on television commercials.

"I started with baby steps," Bernstein said about his foray into advertising. "It wasn't a popular thing to do back then, and it wasn't well-received by other lawyers."

Bernstein said he made his first TV commercial after the Yellow Pages ran his ad at the end of the lawyer listings instead of the front.

His first TV commercial didn't generate a single phone call, he said.

"It was a good thing I was out of the office trying a case for the first two weeks -- otherwise I probably would have pulled the plug on the ads," he said. But he kept with it because he wanted to be No. 1.

Bernstein said his ads have enabled him to help accident victims, given him the choice of personal injury cases and built a firm of more than 20 lawyers that includes his three children.

Seven weeks ago, he unveiled new billboards that build on his 1-800-CALL-SAM brand.

In place of the word "SAM," the new billboards show Bernstein's face.

"The Bernsteins have done a remarkable job of branding their firm over the years," said CBS Outdoor Vice President Thomas Carroll, whose staff designed the billboards. "We were able to create an iconic billboard for an iconic firm."

"When you drive by a Joumana billboard, there's a single focus -- and that's Joumana," Carroll said. "That, like Sam's billboards, is what makes them so effective."

Kayrouz attended American University in Beirut as a premedical student and came to the U.S. when she was 22, according to her Web site. She has a law degree from Wayne State University and worked for Harry Philo, a prominent Detroit personal injury lawyer, whom she calls her mentor and hero.

When he retired around 2002, she started her own firm.

"I had a vision for creating a woman-owned personal injury firm," she said. "As you know, the world of personal injury is dominated by males."

Kayrouz said she has a 40-member staff. On Fridays, she hosts an Arabic and English-language legal talk show on WNZK-AM (690), a Southfield radio station that features ethnic programming. She also advertises on television.

Other major players in Detroit's lawyer billboard advertising market include Gene Zamler of the Zamler, Mellen and Shiffman personal injury firm in Southfield, and the Johnnie Cochran law firm, named for the late California defense lawyer who won the acquittal of O.J. Simpson on charges of murdering his ex-wife and her friend.

Zamler advertises on large billboards. The Cochran firm uses small, eye-level billboards along sidewalks in Detroit.

Many lawyer billboards are understated, like those of Royal Oak attorney Todd Flood. His say: "When it matters ... floodlaw.com."

Flood, a former Wayne County assistant prosecutor, said he wanted classy, toned-down billboards so motorists would know that he and his colleagues at Flood, Lanctot, Connor and Stablein run a first-rate general law practice.

Sunday, August 7, 2011

The District is home to more lawyers per capita than any state in the union, yet when city officials or those aggrieved by the D.C. government find themselves in need of representation, they gravitate to a small, familiar fraternity.

For instance, Mayor Vincent C. Gray (D), D.C. Council Chairman Kwame R. Brown (D), and members Marion Barry (D-Ward 8) and Harry Thomas Jr. (D-Ward 5) have at one time or another been represented by Frederick D. Cooke Jr., the city's former corporation counsel. For a time, it seemed Reed Smith partner A. Scott Bolden represented every person with a beef against the city. And the issue was renewed this week with the revelation that council member Yvette M. Alexander (D-Ward 7) turned to David W. Wilmot to represent her before the D.C. Office of Campaign Finance regarding questions about her constituent services fund.

The probe cleared her of the most serious charges leveled against her - that she had mismanaged her service money and had introduced legislation benefiting the landlord of her ward office in return for below-market rents.

Wilmot no doubt did a creditable job representing Alexander, but the quality of his advocacy is not in question. What is questionable, and is particularly questionable for a city government under a microscope, is that Alexander would turn to perhaps the John A. Wilson Building's most powerful and best-paid lobbyist for legal aid. Wilmot represents Wal-Mart, Anheuser-Busch InBev, Comcast, pharmaceutical manufacturers, hotel owners and others, according to city filings.

Alexander said the decision to retain Wilmot, whose roots in city politics go back decades, was a no-brainer.

"David Wilmot has been a family friend for years," she said. "I've known him long before I was a council member." She points out that her father used to play tennis with Wilmot and that he used to live in Hillcrest, in her ward.

No doubt that friendship is powerful, and no doubt that District politics is a small world, as Alexander puts it. "It's kind of hard to find someone that you can't connect to something," she said. "You know how they say there's six degrees of separation? In D.C., there's two."

But you don't have to be an ethics maven to see the potential for at least the appearance of malfeasance in allowing lobbyists to render services to the politicians they lobby.

All the same, here's what an ethics maven thinks: "What you've just described is quite troubling," said Craig Holman of Public Citizen, a watchdog group. "It could well be a way for a special interest group to funnel resources to officeholders. . . . Most troubling, it could represent a means of gaining the allegiance and indebtment of the officeholder to the special interest."

A lot of doubts could be cleared up if there was any transparency about how and how much officeholders are paying for the services of their lawyer-lobbyists. But there's no disclosure requirement.

There's a similar lack of transparency about Cooke's representation of Brown and Thomas. He lobbies for Clear Channel Outdoor, which owns billboards in the city, and formerly lobbied on behalf of the Corrections Corp. of America, which runs an annex of the D.C. jail, and other interests.

Cooke and Wilmot noted that lawyers and lobbyists are bound by rules of professional conduct and city regulations, and they said they adhere to their requirements - which include avoiding conflicts of interest.

"The fact of the matter is, with respect to persons I represent on the council, I don't lobby them" Cooke said. "I don't lobby Marion. I don't go to him and say I'd like you to vote in favor of XYZ legislation or I'd like you to introduce XYZ legislation." And now that he is representing Brown and Thomas in the course of their legal troubles, Cooke said he will no longer lobby them.

But questions will persist as long as Brown and Thomas remain less than fully forthcoming with details of their financing, and Cooke said he's being as specific as professional rules allow in saying they are "like every other client I have, that is to say, a fee for service."

Note that none of the ethics bills being considered by the D.C. Council addresses the issue of registered lobbyists representing lawmakers in legal disputes - let alone their well-known roles in campaign fundraising.

Wilmot said he does not join Cooke in pledging not to lobby current and former clients, as allowed under city law. "I know how to conduct myself," he said. "If they change the rules, we will abide by them."

For her part, Alexander said she would be happy to meet with her old friend anytime.

The $1 that Andrew Rutherford was awarded after he successfully sued Seattle police for holding him at gunpoint too long will wind up costing the city more than $423,000

The $1 that Andrew Rutherford was awarded after he successfully sued Seattle police for holding him at gunpoint too long will wind up costing the city more than $423,000.

But it could've been worse.

Rutherford's lawyers had asked U.S. District Judge Marsha Pechman to approve attorneys' fees and costs totaling more than $419,000. On Thursday, Pechman ordered the city to pay "a reasonable" award of costs and attorneys fees: $92,042.12.

That amount is in addition to what the city has paid private law firm Stafford Frey Cooper to defend the officers involved, which was $331,000 at the end of June. The city on Friday did not have an updated amount paid to the firm.

But that amount could increase if the city decides to appeal the judge's order. Kimberly Mills, spokeswoman for Seattle City Attorney Pete Holmes, said Friday that "we're considering our options," including a possible appeal.

In finding Rutherford's attorneys were entitled to fees, Pechman wrote: "This litigation has served a public good by airing a constitutional violation. Rutherford is thus entitled to a reasonable award of the attorney's fees and costs that were incurred in prosecuting this matter."

Jay Krulewich and Michael Kolker, the two lawyers representing Rutherford, declined Friday to comment on the judge's order.

Rutherford — who had asked for $3 million in his initial claim against the city — was awarded the $1 verdict by Pechman in June in response to a confusing jury verdict after his seven-day trial in U.S. District Court.

The case arose from a 2007 incident in which rookie police Officer Jonathan Chin, who was off-duty, in plain clothes and driving his personal car, said he was cut off in traffic on Capitol Hill by a black Jeep that ran a red light. Dialing 911, Chin followed the car to a dead-end street in West Seattle, where he confronted three men who were standing outside the vehicle. Rutherford had been a passenger in the car.

Alone and outnumbered, Chin drew a handgun and ordered the men to sit in the darkened street while waiting for backup officers to arrive.

Rutherford claimed he and his two friends were ordered to sit in the street while other officers sped to the scene. Rutherford alleged a cruiser roared toward him, and out of fear he jumped up to move out of the way. When that happened, he claimed, Chin and officers Joshua Rurey and Jason McKissack — the driver of the patrol car — tackled him.

Rutherford was charged with obstructing an officer, but the charge was dismissed.

He suffered facial and head injuries that left him with more than $3,500 in medical bills, according to court pleadings.

The jury did not award him damages for those injuries and found that the officers had not used excessive force nor unlawfully arrested Rutherford.

The jury in the civil-rights trial cleared Chin and four other officers of allegations they used excessive force, and found that Chin was within his rights to briefly detain the men at gunpoint for investigative purposes. But the jury found that the detention went on too long, violating Rutherford's civil rights.

However, the jury determined that Rutherford was not entitled to damages.

Pechman, in a rare move, reopened the damages portion of Rutherford's civil-rights case and awarded him $1. The award allowed his lawyers to seek attorneys fees from the city.

Saturday, August 6, 2011

Republican state Auditor Stacy Pickering has asked the Mississippi Supreme Court to declare funds the attorney general collects from lawsuits to be public money and to require the money to all be turned over the Legislature, including what private law firms collect for their work.

Attorney Arthur Jernigan Jr. told the court Wednesday that Pickering has no dispute with Attorney General Jim Hood's hiring of private lawyers to help with litigation. Jernigan said the dispute centers on the legal fees that the firms collect; he contends the money should go to the state.

The Supreme Court heard Pickering's challenge to a judge's decision last year upholding $10 million in fees paid to lawyers for handling a state lawsuit against computer software manufacturer Microsoft Corp.

Microsoft is not a party to Pickering's lawsuit.

Hinds County Chancellor Denise Owens last April ruled against Pickering.

Microsoft reached a $100 million settlement with the state of Mississippi in 2009. It agreed to pay $10 million to private lawyers hired by the attorney general's office to handle the case.

"The state of Mississippi should collect all the money and then disperse the money to the attorneys," Jernigan said. "The attorney general should request an appropriation from the Legislature for the fees.

"The money that was paid for all public money. We can't have Microsoft appropriating public money to anybody by the state. All of the recovered money is public money. It must all go to the state," Jernigan said.

Assistant Attorney General Harold Pizzetta told the justices that the trial judge, in approving the settlement, directed that the funds be paid to the attorneys.

"It was their money through a contract with the attorney general," Pizzetta said. "There was no question that the state got 100 percent of its settlement. The attorneys' fees were separate."

Justice Michael Randolph asked Jernigan why Pickering doesn't go to the Legislature and have the law changed.

"Why drag us into this?" Randolph said.

Jernigan said he had no answer, other than the auditor was appealing Owen's ruling.

Owens ruled that state law allows the attorney general to hire outside lawyers. Those lawyers received no funds from the state, Owens said, and the legal fees were separate from the settlement.

Hood has said he enters into such contracts with private attorneys when his office does not have the expertise, resources or manpower to pursue a case. He said he awards such contracts to the attorney who presents a case to him.

In June, the Supreme Court heard arguments in a similar case involving a group of lawyers awarded $14 million for their work to collect more than $100 million from telecommunications giant MCI. No decision has been issued in that case.

Lawyers for Facebook Inc. say they have unearthed "smoking-gun documents" that debunk the claims of a New York man that he is entitled to a signficant ownership stake in the social-networking service.

In court papers filed late Thursday in U.S. District Court for the Western District of New York, attorneys for Facebook write that plaintiff Paul Ceglia "does not want the public to know what was discovered on his computers because it includes smoking-gun documents" showing that evidence presented to bolster his case has been fabricated.

Evidence cited by the attorneys includes an alleged contract and email exchanges between Mr. Ceglia and Facebook Chief Executive Mark Zuckerberg, which purport to show Mr. Ceglia formed an early partnership with Mr. Zuckerberg entitling him to a large stake in Facebook.

"The purported contract at the heart of this case is a fabrication," Facebook attorneys write.

Mr. Ceglia originally sued last year, alleging that his arrangement with Mr. Zuckerberg entitled him to an 84% stake in Facebook.

Paul Argentieri, an attorney representing Ceglia, said he was unable to comment due to a protective order on the testing of evidence.

A Facebook spokesman declined to comment.

Facebook has grown rapidly since it was founded by Mr. Zuckerberg while he was a student at Harvard University in 2004, and now counts some 750 million users.

As part of a round of funding closed earlier this year, closely held Facebook was valued at $50 billion. The Palo Alto, Calif.-based firm is expected to go public next year.

Attorneys representing both parties have been scrutinizing alleged documentation of Mr. Ceglia's prior business relationship with Mr. Zuckerberg, including so-called ink analysis.

Wednesday, August 3, 2011

An increasingly contentious lawsuit by a former client against law firm McDermott Will & Emery LLP is putting a spotlight on the legal industry's widespread use of itinerant "contract" attorneys who review documents for lower hourly wages.

J-M Manufacturing Co., the world's largest maker of plastic pipe, hired McDermott five years ago to help respond to prosecutors' request for documents after a former employee filed a whistleblower lawsuit. Late last week, Los Angeles-based J-M amended its pending lawsuit, abandoning some allegations against the law firm while adding others, including that the contract attorneys McDermott used "negligently performed their duties."

The legal malpractice lawsuit, in California state court in Los Angeles, and initially filed in June, is seen in the industry as an important case concerning the quality of work performed by a growing cadre of temp lawyers who are paid as little as $25 to $30 an hour to review documents related to litigation, internal company investigations or regulatory requests for documents. McDermott filed a response to the initial lawsuit last week denying J-M's claims, but hasn't yet filed an answer to its amended complaint.

The case "may well be a harbinger," said Jonathan M. Redgrave, a lawyer whose firm, Redgrave LLP, focuses on information law. There could be more disputes between clients and law firms over work performed by contract attorneys and outside vendors as they are used more in the pre-trial discovery process, he said.

Temporary legal staffing in the U.S. is projected to increase by 25% cumulatively over the next two years, according to the most recent estimate by Staffing Industry Analysts, a research group.

Many law firms use their own contract attorneys but others rely on third-party agencies to hire the temps. In the lawsuit, J-M, also known as JM Eagle, alleged that McDermott "participated in the hiring" of contract attorneys from third-party vendor Hudson Legal and "also assisted in their training," and that McDermott lawyers "negligently performed limited spot-checking of the contract attorneys' work."

The situation led to mistakes, J-M said in its lawsuit. In May and June, more than a year after it had replaced McDermott with another law firm, the company realized that about 3,900 privileged or irrelevant documents may have been mistakenly handed over to the U.S. Attorney's office in Los Angeles, which in turn provided the materials to plaintiffs who refuse to return them, J-M alleged in its amended lawsuit last week.

A spokesman for the U.S. Attorney's office in Los Angeles said he didn't have enough information to confirm J-M's account.

McDermott has defended itself against the allegations. "JM Eagle keeps changing its story," said a spokesman for the firm, which has about 1,000 lawyers and offices around the world, its biggest in Chicago. "Now, JM Eagle has amended its complaint by revising its equally baseless claims that McDermott failed to supervise the contract lawyers that JM retained, and somehow was damaged by the production of documents that JM Eagle cannot even identify."

Marcus Galindo, a spokesman for J-M, said it is still trying to determine how the alleged mistake took place. In addition to hiring contract attorneys, McDermott had relied on two third-party "electronic discovery" vendors that were supposed to automatically separate all privileged documents using a search term filter, he said.

McDermott's own attorneys billed J-M at "rates as high as $925 an hour," J-M alleged. The law firm paid the rate of $61 an hour to staffing firm Hudson Legal, according to the suit, which doesn't specify how much, in turn, the contract attorneys were paid.

The whistleblower lawsuit, set for trial in December, claims that J-M Manufacturing delivered defective PVC pipes to government utilities around the nation. Mr. Galindo described the claims as "baseless."

The federal government declined to intervene in the whistleblower case. According to court records, a number of municipalities elected to intervene. "As a result of McDermott's work, the U.S. government decided not to intervene in the case, and we stand behind the results we achieved for our client," the McDermott spokesman added.

In its lawsuit against McDermott, J-M said that "combined efforts" of the contract attorneys and the McDermott lawyers "fell below the applicable standard of care for lawyers because McDermott didn't properly supervise the contract lawyers and failed to thoroughly review the documents" to "determine whether any or a large number of privilege documents were being disclosed."

J-M "will be unable to prove its reckless and irresponsible allegations," said the McDermott spokesman, adding that McDermott "properly counseled its client."

"JM Eagle was kept in the dark regarding many of McDermott's practices while serving as our counsel," J-M's Mr. Galindo added. "As we have learned more about their conduct during that time we have adjusted our complaints accordingly."

Mark S. Yacano, executive vice president at Hudson Legal, a unit of New York-based Hudson Highland Group Inc., said the company doesn't believe it is "appropriate" to comment since it isn't a party to the lawsuit.

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Tuesday, August 2, 2011

Companies Use of Reverse Auctions to Negotiate Legal Services Is Accelerating

Spurred on by budget pressures, companies' use of a controversial auction process to negotiate contracts with law firms has surged in recent years, a trend that could eventually reduce the revenue attorneys can expect to reap from clients.

Several big companies—including GlaxoSmithKline PLC, eBay Inc., Toyota Motor Corp. and Sun Microsystems—have used the tactic, known as reverse auctions or competitive bidding, to pressure law firms to lower prices, especially on high-volume work such as tax filings and intellectual-property transactions. Many lawyers now worry these auction-based pricing strategies are spreading to more complex projects.

"Is it making all of us uncomfortable? Yes. Especially when you start to move away from the more routine sort of work," says Toby Brown, the director of pricing at Vinson & Elkins LLP.

Reverse auctions pit multiple law firms against each other in an online chat room where they anonymously submit quotes for a particular job. Firms then race against the clock to tender incremental discounts against competing bids. If someone introduces a new low price in the last minute or two of the session, it can be extended for several minutes—launching another round of calculations and lower offers.

Legal expenses for Fortune 500 companies range from about $20 million to $200 million a year, according to Courtney Sapire, chief marketing officer for RFx Legal, a consulting group that works with companies to reduce their legal spending. Reverse auctions can help cut 15% to 40% off those costs, she says.

Shpoonkle, a legal-aid website launched in March, also uses a competitive bidding model to match customers with attorneys and smaller law firms. The average hourly fees its clients pay are a third of the national average, which hovers around $280 an hour, explains Robert Niznik, the website's founder.

GlaxoSmithKline began using reverse auctions last year to drive down fees for some services. A company representative confirmed that the procedure is being phased in for all substantial legal needs.

But lawyers at one firm familiar with Glaxo's program criticized it as unaccommodating in requiring firms to specify time and labor estimates that—particularly for convoluted, higher-stakes work—are extremely variable.

Glaxo defended its system, saying standardized proposals and reverse auctions make it easier to more fairly evaluate firms' cost-effectiveness on a uniform basis.

Sun Microsystems used the method several times since 2008 before its takeover by Oracle Corp. was finalized last year, according to Mike Dillon, the company's outgoing general counsel.

Toyota and eBay confirmed that they use the reverse auction process, but declined to comment further.

Ariba Inc., the maker of one of the main reverse-auction software tools, claims that around 40% of today's market for legal work—a threefold increase from just a few years ago—is contracted through electronic, online means, most of which involve a reverse auction, according to Sundar Kamakshisundaram, a marketing manager for the company.

And David Baumann, general counsel for TechNexxus LLC, which helps companies cut down on legal, technology and business-services costs, says more than a third of the work they do involves reverse auctions, about four times more than in 2008.

But the trust and loyalty built up in long-term client-firm relationships could be undermined by a company's insistence on opening up every new legal matter to competition, say several lawyers who have recently dealt with reverse auctions, including Richard Spehr, a managing partner at Mayer Brown LLP.

"This runs both ways—there is loyalty from us and loyalty from them," says Rich Olin, general counsel for Costco Wholesale Corp., which still pays for most of its legal work at traditional hourly rates. "The history of who we have working on a matter, how we trust them, how they understand our business... make the relationship work."

Paul Lippe, a lawyer and founder of the Legal OnRamp, which sells a software platform that enables companies to collaborate with contracted law firms to improve efficiency, contends that reverse auctions "are a little like getting your stomach stapled to improve your fitness. It might make some things better, but it's likely to...have side effects and not get at the core problem."

Some companies are holding out against the rising popularity of reverse auctions: Costco, Xerox Corp. and Cisco Systems Inc. have shunned the tactic. "We're looking for our outside counsel to be creative," says Don Liu, Xerox's general counsel. "I'm not so sure being on the spot in a chat room is the ideal format for creative thoughts."

But many in-house lawyers at companies trying to reduce spending think that legal services don't warrant high hourly-billing rates.

FMC Technologies Inc., an oil-and-gas-equipment supplier for the energy industry, has been using reverse auctions to find legal counsel for more than a decade, long before the budget crunch of the latest recession helped motivate other companies to follow suit. "Every lawyer will tell you that every piece of work they do is incredibly important and risky and has to be custom-made, and that's just nonsense," says Jeff Carr, the company's general counsel. "No matter how legally brilliant you are, there is always an alternative."